1. Generally speaking, a person has no duty to control the conduct of a third party to
prevent harm to others unless there is a special relationship between the parties.
One such special relationship exists between an innkeeper and its guests.

2. The duty owed by an occupier of land to invitees and licensees alike is one of
reasonable care under all the circumstances.

3. As a general rule, an owner of a business does not ordinarily have a duty to
provide security to protect against the criminal acts of third parties. An exception
to the above rule exists when circumstances indicate that a business owner's
customers have a risk of peril beyond the ordinary.

4. The foreseeability of criminal acts must be determined based on the totality of the
circumstances. Foreseeability is generally a question of fact for the jury.
However, when there is no evidence to indicate the cause of a plaintiff's injuries
was foreseeable, summary judgment may be appropriate.

Emporia Hotels owns and operates the University Inn (motel). Mike Patel became
the manager of the motel when Emporia Hotels purchased it in December 1997. Patel
regularly worked at night between 11 p.m. and 6 a.m.

From the motel's front desk, Patel could see the enclosed glass entrance to the
lobby. Patel kept the doors to the lobby locked during his shift. If a person looked like
he or she wanted to rent a room after hours, Patel would unlock the doors to the entrance
and admit the person to the lobby.

There was little evidence of any prior crimes taking place at the motel. Until the
date of the incident in this case, October 31, 1998, Patel had never had any problem with
criminal activity at the motel. Furthermore, Patel did not remember ever receiving a
request for help from a motel guest after 11 p.m.

Prior to this incident, Patel had rented rooms to George Phillips of Worldwide
Readers Service, Inc. (Worldwide) sales group on one or two occasions. Phillips usually
rented three rooms at a time and would have three or four people in each room. Phillips
rented rooms from Patel on the night of the incident. Sean Cassidy was one of the sales
group members who was staying at the motel that night.

At around 11 p.m. on October 30, 1998, Gardin, and his brother, Maurice, went to
a bar. When the bar closed at 2 a.m., Gardin waited for Maurice outside. Maurice came
out of the bar accompanied by two women with whom he had been dancing. Maurice told
Gardin he wanted to get together with one of the women. The woman said she needed to
pick up a car seat. In Maurice's car, the brothers followed the women to the parking lot
of the motel. Gardin had never been to the motel before.

The woman told Maurice she would return as soon as she retrieved the car seat.
The women then appeared to go into a motel room. A few minutes later, two men
appeared and told Gardin and Maurice to leave because the women did not want to go
with them. Maurice grew angry and an argument ensued. Gardin decided to leave and
began to walk to his apartment nearby. Before Gardin could leave, several men he
recognized from the bar drove up and blocked his way. Gardin ran to the motel lobby's
glassed entry to get help.

Gardin claims he repeatedly asked Patel to let him in, but Patel denied him
entrance. Gardin testified a significant period of time elapsed between when he first
asked Patel for help and when he was attacked by the men. On the other hand, Patel
testified the men attacked Gardin simultaneously with Gardin's demands to be let into the
lobby. Patel testified he refused to admit Gardin, but told him the police were on the
way.

During the fight, Gardin was stabbed by Cassidy several times. The police arrived
minutes later, and Gardin was taken to the hospital for treatment of his wounds.

Gardin filed suit against Emporia Hotels, Cassidy, and Worldwide. Following
discovery, Emporia Hotels filed a motion for summary judgment, arguing that Gardin was
a trespasser at the motel and, thus, Emporia Hotels owed him no duty beyond refraining
from willfully or wantonly injuring him. Gardin contended there was no evidence he was
a trespasser, and Emporia Hotels owed him a duty of reasonable care under the
circumstances.

The district court granted Emporia Hotels' motion for summary judgment based on
two findings: (1) Gardin was a mere trespasser rather than an invitee or licensee of
Emporia Hotels, and (2) under the totality of the circumstances, Emporia Hotels had no
reason to be aware of any possible problems with crime in the area, and Cassidy's act was
not foreseeable.

The district court entered default judgment against Cassidy, who was imprisoned
and did not answer Gardin's petition. Worldwide settled with Gardin and was dismissed
from the lawsuit. The only remaining defendant is Emporia Hotels.

The court's standard of review for appeals of summary judgment is well-established:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories,
and admissions on file, together with the affidavits, show that there is no genuine issue as to any
material
fact and that the moving party is entitled to judgment as a matter of law. The trial court is
required to
resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the
party
against whom the ruling is sought. When opposing a motion for summary judgment, an adverse
party
must come forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive issues in the
case.
On appeal, we apply the same rules and where we find reasonable minds could differ as to the
conclusions
drawn from the evidence, summary judgment must be denied. [Citation omitted.]'" Mitchell
v. City of
Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah,
266 Kan. 847, 871-72, 974
P.2d 531 [1999]).

Cases involving questions of liability under these circumstances are often fact
sensitive. Because Gardin and Emporia Hotels agree upon the material facts of this case,
we have de novo review of the district court's order granting summary judgment. See
Veatch v. Beck, 252 Kan. 1081, 1082, 850 P.2d 923 (1993).

In his petition, Gardin alleges the Emporia Hotels breached its duty to him by
negligently failing to take proper precautions to prevent the assault he suffered and by
failing to come to his aid. In negligence actions, summary judgment should be granted
with caution. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998).
Summary judgment may be appropriate, however, when the plaintiff cannot meet the
basic requirements for negligence claim.

"To recover for negligence, the plaintiff must prove the existence of a duty, breach
of that duty,
injury, and a causal connection between the duty breached and the injury suffered. Whether a
duty exists
is a question of law. Whether the duty has been breached is a question of fact." Reynolds
v. Kansas Dept.
of Transportation, 273 Kan. ___, Syl. ¶ 1, 43 P.3d 799 (2002).

Based on the undisputed facts, the district court found that Emporia Hotels did not
owe Gardin a duty to protect him or come to his aid. This is a question of law over which
this court has unlimited review. Gragg v. Wichita State Univ., 261 Kan. 1037, 1044,
934
P.2d 121 (1997).

Generally speaking, a person has no duty to control the conduct of a third person
to prevent harm to others unless there is a "special relationship" between the parties.
Gragg, 261 Kan. at 1045; accord, Restatement (Second) of Torts, § 315
(1964). This
may not be as humane a policy as we might like to see, but it is the law. One such
"special relationship" exists between an innkeeper and its guests. The Restatement
(Second) of Torts § 314A(2) (1964) states an innkeeper is under a duty to take reasonable
action to protect its guests from unreasonable risk of physical harm and to give them first
aid. Following this rule, in Gould v. Taco Bell, 239 Kan. 564, Syl. ¶ 1, 722
P.2d 511
(1986), the court declared: "A proprietor of an inn, tavern, restaurant, or like business is
liable for an assault upon a guest or patron by another guest or third party where the
proprietor has reason to anticipate such an assault and fails to exercise reasonable care to
forestall or prevent the same." The proprietor's duty to protect its guests or patrons only
arises when the impending danger becomes apparent or would put a careful and prudent
person on notice. 239 Kan. 564, Syl. ¶ 3.

Gardin argues an innkeeper's duty extends beyond its registered guests to include
patrons who have not yet checked into the motel or the guests of registered guests. His
argument finds support at 40A Am. Jur. 2d , Hotels, Motels, Etc. § 82, pp. 534-35:

"Persons upon the premises of the inn in response to an invitation to visit registered guests
at proper
times, for lawful purposes, and who remain within the boundaries of their invitation are invitees,
to whom
the innkeeper owes the duty of exercising ordinary or reasonable care for their safety while upon
the
premises of the inn. When such a visitor or caller is injured upon the premises of the inn, the
innkeeper is
under a duty to exercise reasonable care to see that he or she receives prompt and proper
attention and
treatment."

While Gardin is correct that the law extends an innkeeper's duty beyond its
registered guests, it must have an outer limit. Gardin was not invited to visit a registered
guest of the motel. He was told by one of the women to wait for her in the motel's
parking lot.

Patel testified that the women were not registered guests of the motel. Garden had
no evidence to the contrary. Although an innkeeper owes a duty to its guests and their
guests, the relationship between Gardin and Emporia Motels is too far removed to fall
into the category of the special relationship that requires an innkeeper's affirmative acts.
"When the plaintiffs are not guests of the hotel at the time of the assault, no special
relationship exists between the plaintiffs and the hotel operators that gives rise to a duty
to protect the plaintiffs from the acts of third parties." 40A Am. Jur. 2d, Hotels, Motels,
Etc. § 111, p. 560. At best, Gardin was a guest of a guest of a guest, and maybe not that.

A second "special relationship" that imposes an affirmative duty to act exists
between a possessor of land who opens it to the public and members of the public who
enter the land in response to the invitation. Gragg, 261 Kan. at 1046; Restatement
(Second) of Torts § 314A. Specifically, Gardin argues § 344 of the Restatement
(Second)
of Torts (1964) imposed a duty on Emporia Hotels to protect Gardin from Cassidy's acts:

"A possessor of land who holds it open to the public for entry for his business purposes is
subject
to liability to members of the public while they are upon the land for such a purpose, for physical
harm caused by the accidental, negligent, or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise
protect them against it."

This section of the Restatement has been adopted in Kansas. See, e.g.,
Gould, 239 Kan.
at 568.

A business' duty does not extend to every person who enters the property of the
business, however. "The duty of care owed by a premises owner to an entrant upon the
land is dependent upon the status of the person entering the premises." Gould, 239
Kan.
at 567. Again, because the facts surrounding Gardin's entrance onto the motel property
are undisputed, Gardin's status is a question of law for the court. 62 Am. Jur. 2d,
Premises Liability § 87.

As observed in comment a to Restatement (Second) of Torts § 344, the duty to
protect others from the harmful acts of third persons is only owed to "business visitors,"
commonly known as invitees. "'An invitee is one who enters or remains on the premises
of another at the express or implied invitation of the possessor of the premises for the
benefit of the inviter, or for the mutual benefit and advantage of both the inviter and
invitee.'" Mozier v. Parsons, 256 Kan. 769, 771, 887 P.2d 692 (1995) (quoting
Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 [1978]).

It seems in Kansas this duty would extend to licensees as well, due to Jones v.
Hansen, 254 Kan. 499, Syl. ¶ 2, 867 P.2d 303 (1994), a case involving a dangerous
condition of the property in which the Kansas Supreme Court abandoned the distinctions
between the duty owed to invitees and licensees.

The duty owed by an occupier of land to invitees and licensees alike is one of
reasonable care under all circumstances. "'A licensee is one who enters or remains on the
premises of another by virtue of either the express or implied consent of the possessor of
the premises, or by operation of law . . . .'" Mozier, 256 Kan. at 771.

The district court determined that Gardin was not an invitee or a licensee, but a
trespasser. Jones did retain the classification of trespassers and the duties owed to
them.
254 Kan. 499, Syl. ¶ 4. "'[A] trespasser is one who enters the premises of another
without any right, lawful authority, or an express or implied invitation or license.'" In the
case of a trespasser, the occupier of land owes a duty to refrain from willfully, wantonly,
or recklessly causing injury. Mozier, 256 Kan. at 771. Here, there is no evidence the
motel acted willfully, wantonly, or recklessly toward Gardin. Thus, if the district court
was correct in finding Gardin was a trespasser, and Gardin has no cause of action as a
matter of law, the district court should be affirmed.

Gardin was not an invitee. He was not renting a room at the motel, nor did he
have plans to do so. Emporia Hotels did not benefit from his presence. Gardin was not
visiting a registered guest of the motel, so his presence did not even indirectly benefit
Emporia Hotels. Although Gardin argues the motel held itself open to the public by
having a private club or restaurant on the premises, Patel testified that the restaurant and
club closed at 9 p.m., well before Gardin entered the premises. Thus, there is no
possibility that Gardin was on the premises as an invitee of the restaurant or club. Gardin
was not an invitee, business or otherwise.

However, Gardin is arguably a licensee. Comment h to section 330 of the
Restatement (Second) of Torts (1964) states that a licensee includes persons

"whose presence upon the land is solely for his own purposes, in which the possessor has
no interest, and
to whom the privilege of entering is extended as a mere personal favor to the individual, whether
by
express or tacit consent or as a matter of general or local custom."

People often gather in parking lots without intending to patronize the business that owns
the parking lot. Gardin was waiting for a woman who appeared to have some connection
with the motel. It could be argued that a motel should expect people will enter its
property without intending to rent a room from the motel. However, a business owner
would owe no higher duty to insure the safety of a licensee than that of a patron or
customer.

As a general rule, an owner of a business does not insure the safety of his patrons
or customers. This means the owner of a business ordinarily does not have a duty to
provide security to protect against the criminal acts of third parties in a parking lot.
However, an exception exists when circumstances indicate that a business owner's
customers have a risk of peril beyond the ordinary. Seibert v. Vic Regnier Builders,
Inc.,
253 Kan. 540, 548, 856 P.2d 1332 (1993).

In Seibert, the plaintiff was attacked in the defendant's parking garage by an
unknown assailant. The district court granted the defendant's motion for summary
judgment because there were no prior similar incidents indicating such a criminal act was
foreseeable. The Kansas Supreme Court reversed, holding that the district court should
determine foreseeability based on the totality of the circumstances rather than just the
history of prior crimes in the area, although history was a factor. The district court was
also instructed to review the level of crime in the area, the lighting in the garage, and
other relevant factors. 253 Kan. at 550.

In the case at hand, the district court found the crime against Gardin was not
foreseeable under the totality of the circumstances in accordance with Seibert.
Foreseeability is generally a question of fact for the jury. However, when there is no
evidence to indicate that the cause of a plaintiff's injuries was foreseeable, summary
judgment may be appropriate. See Cullip v. Domann, 266 Kan. 550, 562, 972 P.2d
776
(1999) (when there was no evidence that parents should have known they needed to be in
control of their son, there is no liability for son's negligent act).

The only evidence of prior crime at the motel was that in 1998, an unknown
individual took money from a cash register at the front desk. Patel testified that he knew
of no other criminal activity at the motel. Although the motel is located near an interstate
highway, there is no evidence that this is a high-crime neighborhood. It does not appear
that the lighting in the parking lot would have prevented the attack, since it was
committed in a lighted lobby area in front of the desk clerk. There was no evidence to
support a finding that there was any foreseeable likelihood of a criminal attack on the
premises sufficient to require protective action.

Another analogous case is Kimple v. Foster, 205 Kan. 415, 469 P.2d 281
(1970).
There, the plaintiff, who was a guest at the defendant's bar, was attacked by a group of
other patrons. The court found that the defendant had reason to know that his guests
were in danger because the group had been unruly for several hours before the attack.
Having been put on notice of the possible danger to other patrons, the defendant had an
affirmative duty to protect them. 205 Kan. at 418-19; see also Gould v. Taco Bell,
239
Kan. at 569 (restaurant clerks knew plaintiff's assailants had started a fight on a previous
occasion and thus had a duty to protect plaintiff from attack).

In this case, there is no evidence the motel knew that members of the Worldwide
sales group had engaged in prior criminal activity. It was not foreseeable that Cassidy
would follow Gardin into a lighted entrance and stab him repeatedly in front of Patel.
Unlike the situation in Seibert and Gould, Patel had no warning that
Cassidy was violent
and, thus, under the totality of the circumstances, had no duty to protect Gardin from this
unforeseeable attack.